-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NrpwrOT/WdksoQ02GkRTlV+ePBsY0NFjb93V4xobAyFeOXIwkMuiifKY0tOnqCyG oef7V3y74zHDeqJDOPpmEA== 0000895921-01-000004.txt : 20010329 0000895921-01-000004.hdr.sgml : 20010329 ACCESSION NUMBER: 0000895921-01-000004 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010328 EFFECTIVENESS DATE: 20010328 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BE INC CENTRAL INDEX KEY: 0000895921 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 943123667 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-57790 FILM NUMBER: 1582564 BUSINESS ADDRESS: STREET 1: 800 EL CAMINO RD STREET 2: SUITE 300 CITY: MENLO PARK STATE: CA ZIP: 95117 BUSINESS PHONE: 6504624100 MAIL ADDRESS: STREET 1: 800 EL CAMINO REAL STREET 2: SUITE 300 CITY: MENLO PARK STATE: CA ZIP: 95117 S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on March 28, 2001 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 BE INCORPORATED (Exact name of registrant as specified in its charter) Delaware 94-3123667 (State of Incorporation) (I.R.S. Employer Identification No. 800 El Camino Real Suite 400 Menlo Park, CA 94025 (650) 462-4100 (Address of principal executive offices) 1999 Equity Incentive Plan (Full title of the plan) Jean-Louis F. Gassee President, Chief Executive Officer Be Incorporated 800 El Camino Real Suite 400 Menlo Park, CA 94025 (650) 462-4100 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: Vincent P. Pangrazio, Esq. Frank F. Rahmani, Esq. COOLEY GODWARD LLP 3000 El Camino Real Palo Alto, CA 94306-2155 (650) 843-5000
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------ Proposed Maximum Proposed Maximum Title of Securities Offering Aggregate Amount of to be Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee - ------------------------------------------------------------------------------------------------------------------------------ 2,108,580 shares $1.50 $3,162,870 $790.72 Stock Options and Common Stock (par value $.001) - ------------------------------------------------------------------------------------------------------------------------------- - ---------------- (1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h). The price per share and aggregate offering price are based upon the average of the high and low prices of Registrant's Common Stock on March 23, 2001 as reported on the Nasdaq National Market.
INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENT ON FORM S-8 NO. 333-85411 The contents of Registration Statement on Form S-8 No. 333-85411 filed with the Securities and Exchange Commission on August 17, 1999 are incorporated by reference herein. EXHIBITS
Exhibit Number - ------ 3.1* Amended and Restated Certificate of Incorporation of the Registrant 3.2* Bylaws of the Registrant 4.1* Form of Common Stock Certificate 5.1 Opinion of Cooley Godward LLP 23.1 Consent of PricewaterhouseCoopers LLP, independent auditors 23.2 Consent of Cooley Godward (contained in Exhibit 5.1 to this Registration Statement) 24.1 Power of Attorney (contained on the signature page) 99.1* 1999 Equity Incentive Plan * Incorporated by reference from the Registrant's Registration Statement on Form S-1, as amended (File No. 333-77855), filed with the Securities and Exchange Commission.
SIGNATURES ---------- Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Menlo Park, State of California, on March 28, 2001. Be Incorporated By:/s/ JEAN-LOUIS F. GASSEE Jean-Louis F. Gassee President, Chief Executive Officer and Director POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jean-Louis F. Gassee and P.C. Berndt, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date /s/ JEAN-LOUIS F. GASSEE President, Chief Executive Officer and March 28, 2001 Jean-Louis F. Gassee Director (Principal Executive Officer) /s/ P.C. BERNDT Vice President and Chief Financial March 28, 2001 P.C. Berndt Officer (Principal Financial Officer) /s/ STEVE SAKOMAN Director and Chief Operating Officer March 28, 2001 Steve Sakoman /s/ BARRY M. WEINMAN Director March 28, 2001 Barry M. Weinman /s/ GARRETT P. GRUENER Director March 28, 2001 Garrett P. Gruener /s/ STEWART ALSOP Director March 28, 2001 Stewart Alsop /s/ WILLIAM F. ZUENDT Director March 28, 2001 William F. Zuendt /s/ ANDREI MANOLIU Director March 28, 2001 Andrei Manoliu
EXHIBIT INDEX -------------
Exhibit Number Description - ------ ----------- 3.1* Amended and Restated Certificate of Incorporation of the Registrant 3.2* Bylaws of the Registrant 4.1* Form of Common Stock Certificate 5.1 Opinion of Cooley Godward LLP 23.1 Consent of PricewaterhouseCoopers LLP, independent auditors 23.2 Consent of Cooley Godward (contained in Exhibit 5.1 to this Registration Statement) 24.1 Power of Attorney (contained on the signature page) 99.1* 1999 Equity Incentive Plan
EX-5.01 2 0002.txt OPINION OF COOLEY GODWARD LLP Exhibit 5.1 March 28, 2001 Be Incorporated 800 El Camino Real Menlo Park, CA 94025 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by Be Incorporated (the "Company") of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission covering the offering of up to 2,108,580 shares of the Company's Common Stock, $.001 par value, (the "Shares") pursuant to its 1999 Equity Incentive Plan (the "Plan"). In connection with this opinion, we have examined the Registration Statement and related Prospectus, your Certificate of Incorporation and By-laws, as amended, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, the Registration Statement and related Prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full). We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, COOLEY GODWARD LLP By: /S/ VINCENT P. PANGRAZIO ------------------------- Vincent P. Pangrazio, Esq. EX-23.01 3 0003.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP Exhibit 23.1 Consent of Independent Auditors We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 19, 2001 relating to the financial statements of Be Incorporated, which appears in Be Incorporated's Annual Report on Form 10-K filed on March 27, 2001. We also consent to the incorporation by reference of our report dated January 19, 2001 related to the financial statement schedule which appears in such annual report on Form 10-K. /S/ PRICEWATERHOUSECOOPERS LLP San Jose, California March 28, 2001 -----END PRIVACY-ENHANCED MESSAGE-----